Free Speech Responds to Government Brief in 2257 Lawsuit

PHILADELPHIA, Pa.—Attorneys for Free Speech Coalition and 14 other plaintiffs today filed their reply brief to the U.S. Department of Justice's (DOJ) brief urging the Third Circuit U.S. Court of Appeals to uphold Judge Michael Baylson's dismissal of FSC's lawsuit targeting the federal recordkeeping and labeling law, 18 U.S.C. §2257. In short, attorneys J. Michael Murray and Lorraine R. Baumgardner, with assistance from attorney Reed Lee, successfully refute every one of the DOJ's arguments, often pointing out that the government attorneys have taken contradictory positions on several key points.

As AVN readers know, litigation against 2257 has been ongoing for more than a decade, with the most recent battle having been joined in October, 2009, when FSC and plaintiffs as diverse as adult performers/directors Dave Cummings and Nina Hartley; photographers David Steinberg, Barbara Alper and others; sex educators Betty Dodson and Dr. Carol Queen; and adult webmaster Thomas Hymes sued to gain relief from the enormous time and expense burdens forced upon them by the federal statute in question.

But the FSC plaintiffs' case was dismissed in a summary judgment decision in July, 2010, at which point FSC appealed to the Third Circuit, filing its appellant brief last February. After some dealy, the government filed its reply brief on May 2, with FSC's reply to that brief coming just one month later.

Perhaps most ludicrous is the government's claim that the plaintiffs have "presented not a single plausible claim." Murray and Baumgardner spend 31 pages of their reply detailing a plethora of "viable and meritorious constitutional claims that should not have been discarded on a motion to dismiss, but, at the very least, deserved the development of a factual record."

The government, in its answer to plaintiffs' appeal, claimed that no further evidence need be considered, since the Supreme Court, in Turner Broadcasting Systems, Inc. v. FCC I & II, had stated that Congress's findings in enacting the law in the first place were all the evidence the DOJ needed to present. But in fact, as FSC points out in its reply, the Supreme Court actually said just the opposite: That the government needed to "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." The Justice Department has not done that, since it has yet to present any evidence supporting its positions.

The FSC reply also notes that the government expressed just one harm which it claimed 2257 was created to eliminate: "[T]o address the risk that underage performers might be used in the production of adult films... This singular harm is offered by the Government as the entire justification for the statutory scheme that imposes its burdens on all constitutionally protected sexually explicit speech involving adults."

In support of that claim, the government cites material as far back as the Meese Commission report, even though that report's writers admitted to "severe limitations of the evidence," and described their own findings and recommendations as "largely tentative"!

In its reply, however, FSC points out that although the Meese Commission report at one point states,  "Pornographers use minors as performers in films and other visual depictions," there is in fact no evidence in the Commission's findings that support that conclusion, and even provides evidence to the contrary. Nor does the Commission's claim that porn consumers look for "youthful performers" prove that any of those performers were underage.

"It is this tentative, dated evidence on which the Government depends to show that the 'recited harm' is sufficiently real to justify imposing the heavy burdens on that which is not child pornography, but rather is protected expression depicting adults," FSC's brief argues. "This single conjectural harm cannot justify the hefty burdens the record-keeping and labeling requirements impose on the entire universe of constitutionally protected sexual images of adults—particularly given the fact that those burdens have grown more and more cumbersome and oppressive as Congress has amended the law and propounded new regulations implementing it over the years."

The reply then goes on to cite how the law, when originally enacted, merely provided adult producers with a "rebuttable presumption" if their products were accused of containing underage performers; producers could simply supply proof of the performer's age, and the child porn charges would be dismissed. Indeed, Alan Sears, the Meese Commission's executive director (and now president of the conservative Alliance Defense Fund), stated back in 1988 at a Senate hearing on the matter that, "Producers of material depicting 'actual sexually explicit conduct' who use only performers appearing over eighteen are not going to face prosecution for sexual exploitation of children and, so, may disregard this section's requirements." [Emphasis added]

But as FSC's reply details, in subsequent years, Congress has transformed the "rebuttable presumption" into "a law that punishes non-compliance by anyone producing sexually explicit expression as a felony. The statute ... now covers, not only actual sexual conduct, but simulated sexual conduct and the lascivious display of the genitals; it now is enforced by direct criminal sanction—not a rebuttable presumption—which, through the years has increased from a term of imprisonment of two years to a term of imprisonment of five years; it now applies not only to visual depictions in magazines, books, and films, but to depictions posted on the internet; it now punishes refusal to allow the warrantless search and seizure of the requisite records; and it now permits the Government to use the records it requires producers to keep as evidence against them in obscenity prosecutions."

Much of the rest of the FSC brief expands on those points, in the process arguing that even under intermediate scrutiny—the level at which the government argues that 2257 should be considered, rather than "strict scrutiny," a higher standard—the statute is not "narrowly tailored to achieve the governmental interest justifying it," which the reply notes is the government's interest in "suppressing child pornography," not, as Judge Baylson construed it, "in having all producers establish that their expression is not child pornography." The latter interest runs smack up against the First Amendment's presumption that adult material not involving children is protected speech, and impermissibly shifts the burden of proving the material does contain child porn from the government to requiring a potential defendant to prove that the material does not contain underage performers.

"The point can perhaps best be made by analogy," the FSC reply brief states. "Imagine a statute enacted to reduce the risk that unprotected libel would be published and that 'merely required' newspaper publishers to establish in a reliable manner,'  the truth of what they published, by compelling them—on penalty of criminal sanction—to create and maintain records documenting its truth and to affix labels to their publications identifying the location of those records. This hypothetical law would unquestionably reverse the First Amendment presumption afforded such expression and shift the burden to their publishers of establishing that their speech was protected.  It would be struck down as unconstitutional in a heartbeat. Yet that is the precise operation and effect of the statutes at issue here." [Citations removed here and below]

Moreover, Murray and Gaumgardner point out that if it wanted to, the government could simply use the same method it allows producers of softcore simulated sexual content to employ under §2257A: The adult company could simply maintain normal employment and tax records on its employees (as many adult companies already do), and then file a letter with the Attorney General of the United States affirming that it maintains such records, and they show that the performer is an adult.

"The content-based nature of 18 U.S.C. §2257 is underscored by a provision contained in its companion statute, 18 U.S.C. §2257A, that provides an exemption from the record-keeping provisions for commercial producers of expression that depicts simulated sexual conduct," Murray and Baumgardner argue. "A producer of expression who stands in the otherwise identical shoes of a producer who qualifies for the exemption under 18 U.S.C. §2257A, but whose expression depicts actual—as opposed to simulated—sexual conduct must fully comply with the record-keeping requirements and is subject to criminal sanction if he does not; his counterpart who produces expression containing simulated sexual conduct, does not.  The only distinction between the two is the content of the expression they produce."

But though the government claimed—incredibly!—in its brief that the distinction in rules between producers of hardcore and simulated content is not content-based, Murray and Baumgardner provide ample evidence from the government's own words and filings that such is not the case.

"It [the DOJ brief] states that the exemption was designed to apply to  '"mainstream"' images, such as sex scenes in '"R'-rated Hollywood movies' which depict 'nonchild actors,' where 'the producers of such movies keep records that include objective proof of age," the FSC brief states. " But if, as Plaintiffs maintain, they do keep such records, then the only distinction between those who qualify for the exemption (those who produce '"mainstream" images') and those who do not, is the 'particular images' forming the content of their expression." [Emphasis in original filing]

Also regarding the "narrowly tailored" objection, the FSC brief notes that the 2257 requirements apply equally to 70-year-old Dave Cummings and 50-year-old Nina Hartley as they do to any 18-year-old currently entering the adult business. Talk about overinclusiveness! The statute also bans much otherwise-protected sexual expression, such as "Cupido, a Norwegian journal of erotic art and prose," edited by plaintiff Steinberg, which contains no underage images but can't be distributed in the U.S. because its photographers don't keep age verification records and it doesn't have the required 2257 label. Also, some photographers (like plaintiff Dave Levingston) can't sell their work commercially because due to the amount of traveling they do, they can't be present at the location where their records are kept for the required 20 hours per week.

The government has also argued that although the plain language of the statute makes clear that it applies to both commercial and "purely private conduct," the court should "apply a narrowing construction to avoid the  'grave' constitutional questions raised by the statutes’ application to private expression." Trouble is, the Supreme Court already rejected that idea in U.S. v. Stevens, the dog-fight video case, noting that the high court could limit the statute "only if it is 'readily susceptible' to such a construction. The construction of the statute urged by the Government, the Court found, required 'rewriting, not just interpretation'." [Internal quotes removed]

"The plain language of the statutes (and of the regulations as well) defines their reach as extending, not only to commercial expression, expression offered for trade, and private expression posted on social networks and on tube sites, as the Government concedes, but also to other private expression–whether captured on a cell phone, attached to an email, or stored on a digital camera," the FSC brief notes. "There is absolutely no hint by Congress that it intended to exclude this particular expression from the statutes' requirements. The legislative history, in fact, indicates otherwise... Nowhere in the statute is there any textual support for the Government's argument that a person who posts a sexually explicit image on an adult social network website must comply with the statutory record-keeping and labeling requirements, but a person who attaches that same image to an email, does not."

Under the statutory language, even a husband who took nude photos of his wife in their bedroom would be required to keep records and be available for inspections! (AVN readers will recognize that this was the situation in the Connection Distributing case, which Murray won before a Sixth Circuit panel before the win was overturned by an en banc panel.)

FSC's reply also deals with the Fourth Amendment problems of 2257, in that the statute gives authorities the power to enter any premises—even private residences—where 2257 records are kept, search through and copy them, all without first obtaining a valid search warrant, in violation of the Fourth Amendment's guarantees against unwarranted intrusions. The government had claimed that such searches were "administrative," as are allowed for what are termed "closely regulated industries"—which, the FSC brief argues, the plaintiffs—which include the adult content industry members, freelance photographers, sex educators and journalists—clearly are not. The brief also notes that the administrative search exception applies only to commercial enterprises, not private homes where records are sometimes stored.

With the filing of FSC's reply brief, the Third Circuit should have enough background material to schedule an oral argument on the issues, but it is unclear when such argument will be scheduled. Check back with for further updates on this important issue.

The 2257 FSC reply brief can be accessed here.